JURIST Guest Columnist Kenneth Englade, discusses military justice system in the context of the Haditha incident in 2005 …

Nine years ago this week a squad from Kilo Company, 3rd Battalion, 1st Marine Regiment, was returning from a routine re-supply mission on the outskirts of Haditha in western Iraq when it was attacked with an Improvised Explosive Device (IED) that killed one Marine and wounded two others. It was the beginning of a day-long killing spree that ended with twenty-four Iraqi civilians dead: nine men (including four brothers); four women; six children between the ages of three and 14; four students at a technical school being driven to classes, plus their driver—all killed either in their homes or gunned down on the roadside.

Thanks to the passage of time and clever manipulation by the US Marine Corps, the incident and the legal proceedings that followed have virtually disappeared from the public’s memory. Forgotten or never fully recognized is the fact that that the Haditha proceedings turned the military justice system inside out, making a mockery of any naively held concepts of consistency with the spirit of the Uniform Code of Military Justice (UCMJ), transparency, accountability, and prosecutorial competence.

Eight men from the battalion, including the commander, were charged with crimes ranging from willful dereliction of duty, multiple counts of murder and aggravated assault. The proceedings dragged on for an unprecedented six years, mostly out of public view, which was the Corps’ apparent objective. During that period, charges were dismissed against six of the men. One junior officer was tried and acquitted and the staff sergeant who participated in each of the events in which civilians were killed pled to a misdemeanor. He left the Corps with a General discharge under honorable conditions. Under the terms of the plea agreement, he served no time in the brig even though ordinarily he could have been sentenced to three months in jail under UCMJ guidelines.

From beginning to end, the handling of the incident and its aftermath was a fiasco; the worst known performance by a Corps legal unit in multiple cases in the organization’s history. Normally, Corps trial counsel have a 93 percent conviction rate; in the Haditha proceedings it was 12.5 percent. Worse, it likely caused serious damage to the military justice system as a whole: harm that may not be evident but lingers below the surface, like an IED, that could explode with tragic consequences.

The mistakes began almost immediately. Fewer than two hours after the civilians’ bodies were collected and taken to the Haditha Hospital morgue, the Corps’ Iraq Command issued a deliberately false news release contending that the men, women, and children were killed either in the IED explosion or during a cross-fire between Marines and insurgents. It simply wasn’t true, although the reality was not revealed for four months. By then, a high-ranking Army officer had become suspicious and ordered an independent investigation. It was only then that the embarrassed Corps began its own examination. An indication of how the proceedings would advance was the fact that charges were not preferred until thirteen months after the incident.

After jumping off to a reasonably brisk start, the proceedings came to an abrupt halt early in 2008. Following the required Article 32 hearings, the cases of four men were referred to trial. The group included the battalion commander, Lt. Col. Jeffrey Chessani, and Staff Sgt. Frank Wuterich, the squad leader originally charged with eighteen counts of murder although his charges at trial were considerably reduced. All murder accusations against him had been dismissed.

The first stumbling block to Wuterich’s court-martial was a fight between the government and the broadcasting giant, CBS News. Trial counsel wanted access to information that CBS was unwilling to provide, citing First Amendment protection. The conflict led to hearings, appeals, counter-appeals and more hearings. Finally, it was resolved in the government’s favor twenty-one months after it began.

By then, another situation had arisen. Wuterich’s trial judge retired before the issue was settled, creating a vacancy that the Corps apparently was unprepared to fill. Military retirements do not take place overnight; the Corps had months to get ready. Despite this, it was March 2010—a year after the original judge retired—before a new judge took the bench.

But that was not the end of the obstructions. Wuterich’s lawyers, who had remained mostly on the sidelines during the Corps/CBS confrontation, launched an offensive in attempts to have Wuterich’s charges dismissed. That dispute took almost a year to resolve. As a result, Wuterich, who had been charged in December 2006, did not go to trial until January 2012. It was the longest any court-martial had been postponed in US military history.

While the clashes over when Wuterich’s trial would begin continued in the appeals courts, another frenzy brewed in the court-martial of Lieutenant Colonel Chessani. Charges against him were dismissed before trial because of the appearance of Unlawful Command Influence. Still, it was more than three years before he was forced to retire. All told, his case consumed four and a half years and went twice to the Navy-Marine Court of Criminal Appeals.

Even after the courts-martials ended with Wuterich’s trial, repercussions continued into the future. In April 2012, Navy Secretary Ray Mabus ordered the Corps to dismiss two enlisted men who had been witnesses in various proceedings, saying they lied on the stand. What happened in these cases is a mystery: they disappeared behind the Corps secrecy barrier and their fates are unlikely ever to be known because for the Corps to do so would be a violation of their right to privacy. Presumably they were kicked out, per the Navy secretary’s request.

Officially, the Haditha proceedings are history, but they should not be forgotten because they created more problems than they solved. From a military justice point of view, they should be viewed as a warning that something is wrong with the system and it needs to be adjusted.

At the top of any list of possible reforms should be consideration of the policy regarding interlocutory appeals. Currently, there is no limit on how many may be filed in a particular case. But consider the abuses of Haditha: almost a dozen appeals were filed in only two cases during the proceedings but they required action by both of the military appeals courts. All told, it took the courts four years to sort them out. One issue in Wuterich’s case—a petition for a writ of mandamus seeking relief in a complicated situation involving alleged improper severance of an attorney-client relationship—was heard three times by each of the two appeals courts.

Another issue is the overwhelming power of the Convening Authority. There currently is a move by some in Congress to limit the CA’s control, but only in cases involving sexual assault. That goal needs to be expanded. The first CA in the Haditha proceedings (eventually, there were four)—Gen. James Mattis—used his dominion to ignore directives from Corps headquarters to favor a colleague during preparations for Chessani’s court-martial. This led to the dismissal of charges against Chessani, although he likely would have been convicted at court-martial.

It also was Mattis who decided who would be charged and with what. It was a series of disastrous decisions. Charges against one officer were dismissed without an Article 32 hearing. Charges against another were tossed out because testimony showed he could not have been responsible for committing the crime. And a third was cleared because the Corps’ case was so weak the jury quickly voted to acquit.

Another matter that should be examined is the Corps transparency policy. Although this does not fall within the UCMJ, the Corps’ adamant refusal to share information caused significant harm to the military justice system. By taking the issues to the appeals courts rather than airing them openly in trial courts, the Corps effectively denied the public the right to information. This pattern, which appears to have been deliberately planned to eliminate potentially injurious publicity, was compounded by the veil of secrecy thrown over the proceedings. The Corps, for example, refused access to motions, declined to name trial counsel, spurned requests for background on the judges and the Investigating Officers and turned down attempts to clarify specific points of military law. Questions filed under the Freedom of Information Act were ignored, bounced from office to office, or answered incompletely.

The reason the Corps can get away with this is because it operates in a netherworld without discernible policies on what information should be released to the public and the media. Although military courts are part of the federal system, they are not Article III courts so information availability rules applicable to almost all federal courts and agencies do not apply. Motions are a good example. Although they are readily accessible in clerk’s offices in federal and state courts, the Corps refused to release copies. The Corps makes its own determinations about sharing details; it is a law unto itself, accountable only to the President and the Secretaries of Defense and the Navy. It has no mandated obligation to the public or the media. The result, in the Haditha instance, is that the full ramifications of the proceedings were never thrown open for debate or study.

If the military continues to retain its non-transparency proclivities and persists in hiding vital information, it leaves the door ajar for Congress to take a more active role in closing the loopholes revealed in the Haditha prosecutions. That could mean abolishment of the military justice system as it currently exists in favor of a one like that adopted by the British in which military courts have been replaced by a system dominated by civilians.

Kenneth F. Englade is a New Mexico based writer with experience as a reporter, magazine writer, and author of nine non-fiction books dealing with prominent trials. He is a member of the Hall of Fame at the Louisiana State University School of Mass Communication. His latest book—Meltdown in Haditha: The Killing of 24 Iraqi Civilians by US Marines and the Failure of Military Justice—will be released in January by McFarland & Co.

Suggested citation: Kenneth Englade, Haditha Redux , JURIST-Professional Commentary, Nov. 17, 2014, http://jurist.org/professional/2014/11/Kenneth-Englade-Haditha-Redux.php